Monday, June 19, 2017

Free Offense

This case concerned a rock band called the “The Slants,” a reference to the racial slur for Asians. When Simon Tam, the band’s Asian-American frontman, tried to register his group’s name with the trademark office, he was told he could not get a valid trademark because the name was offensive to Asians. Before the Court, Tam’s attorneys argued that his intention was to “reclaim” the term “slants” and subvert its offensive potential.

The anti-disparagement provision, 15 USC §1052(a), has rarely had any practical effect, but has come to public notice in recent years as left-leaning advocates and public officials sought to use it to invalidate “offensive” trademarks. Most prominently, the Washington Redskins football team, who have twice had their trademark protections revoked for having a name that “disparages” American Indians.

Writing for the Court, Justice Samuel Alito reasoned that the entire purpose behind the provision rendered it facially unconstitutional. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend,” he wrote.